(FAMILY DIVISION)
Citation: Harris v. Harris, 2010 NSSC 410
Date: 20101108
Docket: 1201-058093
Registry: Halifax
Between:
Colleen Anne Harris
Petitioner
v.
Stephen Blake Harris
Respondent
Judge: The Honourable Justice Elizabeth Jollimore
Heard: November 2, 2010
Counsel: Michele Cleary, for Stephen Blake Harris
Tammy Wohler for Colleen Lahey (formerly Harris)
By the Court:
Introduction
[1] In May, 2010, Blake Harris applied to terminate his spousal support payments to Colleen Lahey. Mr. Harris retired in June 2010 and he stopped making spousal support payments in July 2010.
Legal threshold
[2] According to section 17(4.1) of the Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, before I vary a spousal support order, I need to be satisfied that, since the most recent spousal support order was made, there has been a change in the condition, means, needs or other circumstances of either former spouse. Once I am satisfied of that, I am to consider the change that has occurred when I vary the most recent spousal support order.
The change
[3] Mr. Harris claims that his ability to pay has changed. He has retired and his income is reduced. When he was working, Mr. Harris earned approximately $60,300.00 annually. As well, he received another $800.00 from dividends and taxable capital gains. Since retiring, Mr. Harris receives a monthly pension payment of $2,801.40. His pension payment is comprised of a base pension amount and "OAS [Old Age Security] integration", according to his pension statement. While Mr. Harris' counsel said that Mr. Harris would be required to repay the OAS payments, there was no evidence from Mr. Harris to this effect and there was nothing in his documentary materials which touched on this topic. Mr. Harris' dividend and taxable capital gain income continues, though the amount has changed modestly.
[4] Mr. Harris' evidence is that he was not required to retire. He has not reached an age when his retirement is compelled. He retired just two months after turning fifty‑seven. His employer did not require it. His health did not require it. In his affidavit, he clearly states "Although I have not retired strictly for medical reasons, my declining health and various medical conditions have been very persuasive in making my decision to retire at this time". Mr. Harris explained that he experiences pain and his pain is lessened when he doesn't work. He provided a letter from his doctor which outlined all his health concerns: he has psoriatic arthritis and hypertension and he fell while at work in November 2009 which caused a left lumbar back strain, local nerve injury and a severe sprain of his right ankle. In this letter, Mr. Harris' doctor does not state that Mr. Harris cannot work or that he should retire. Mr. Harris says he gave no consideration to working part‑time and does not intend to do work part‑time.
[5] Mr. Harris argues that it was always understood and agreed that he'd retire early. Ms. Lahey says Mr. Harris "has always told me that he was going to retire early" and he discussed his early retirement with many friends and family members. While she understood his plan to retire early, there was no evidence that they agreed he would retire early. The agreement which was incorporated into the parties' Corollary Relief Judgment makes no mention of any agreement relating to Mr. Harris' retirement. Ms. Lahey argues that Mr. Harris' early retirement isn't a change because it was anticipated. She also argues that, while Mr. Harris may have planned to retire early, many plans must change when there is a divorce.
[6] Ms. Lahey says that Mr. Harris' early retirement should not be a basis for varying her support payments. She relies on Justice Dellapinna's decision in Wambolt, 2008 NSSC 52 where, at paragraph 41, His Lordship said "While [Mr. Wambolt] may be free to retire whenever he chooses, he cannot voluntarily choose to be underemployed and thereby avoid his spousal support obligations."
[7] Justice Dellapinna's statement describes Mr. Harris' circumstances exactly. Mr. Harris retired voluntarily. While his decision to retire was influenced by his health, poor health did not compel him to retire early and, to be fair, Mr. Harris did not suggest that poor health compelled his retirement. There was no suggestion that Mr. Harris' health prevents him from working full‑time, working less or working at a less demanding job.
[8] Mr. Harris' retirement is not a change which entitles him to vary his spousal support obligation.
[9] Mr. Harris' spousal support obligation arises following a twenty‑two year marriage. During that marriage, the couple had two children. Ms. Lahey was primarily responsible for raising the children and she was, as well, employed or self‑employed in various day care settings starting in 1985 and continuing until 1997. During this period she worked in four different daycare settings. Mr. Harris was the primary income‑earner throughout the marriage. Since the separation, Ms. Lahey has pursued re‑training through the Academy of Learning. When she completed her re‑training, she engaged "People Plus" for assistance in preparing her resumé and conducting a job search.
[10] Ms. Lahey has a long history of poor health. In 1984 she was diagnosed with temporo‑mandibular joint disorder (TMJ) and hyperthyroidism. She underwent surgery for her TMJ in 1988. In 1994, she was diagnosed with severe depression and anorexia. One medical opinion, dating from 2004, that was provided to me indicated that Ms. Haley had been anorexic for the past thirty‑eight years. Ms. Haley began to receive Canada Pension Plan disability payments in 1999 (which were paid retroactive to 1998). In 2000, she was diagnosed with osteoporosis as a complication of her anorexia.
[11] Neither party has asserted that there is any change in Ms. Lahey's circumstances that reduces her need for support from Mr. Harris. The parties divorced in 2005 and from that time to the present, Ms. Lahey has typically had an annual income (exclusive of her spousal support payments), of approximately $11,000.00 which was comprised of disability payments from the Canada Pension Plan and wages or stipends she has received from part‑time work or volunteer efforts. To put this in context, I refer to the low‑income measures noted in Schedule II of the Federal Child Support Guidelines, SOR/ 97‑175. The low income measures indicate $10,382.00 is the low income amount for a household comprised of one adult. Without spousal support, Ms. Lahey is very close to that low income amount.
[12] Ms. Lahey's mental and physical health impairs her ability to be self‑sufficient. She volunteers and works part‑time. These efforts supplement the disability payments she receives from the Canada Pension Plan and contribute to her emotional well‑being. Ms. Lahey is making a reasonable and committed effort to her own self‑sufficiency.
Conclusion
[13] I conclude that there is no change in the circumstances of Mr. Harris or Ms. Lahey. Accordingly, I dismiss Mr. Harris' application to terminate his spousal support payments. Since there is no change, I need not address Mr. Harris' arguments about how he or Ms. Lahey should arrange their finances or Ms. Lahey's efforts to achieve self‑sufficiency. Mr. Harris shall immediately resume his monthly spousal support payments of $1,100.00 and he shall, forthwith, pay the arrears which have accumulated from his failure to pay spousal support from July 2010 to November 2010.
_______________________________
Elizabeth Jollimore, J.S.C. (F.D.)
Halifax, Nova Scotia